On a road near my house, there's a sign that has inadvertently become an advertisement for a candidate for the presidency. "Henry Hudson Pkwy Beautification," it reads, "DONALD J. TRUMP, Adopt-a-Highway." (You can see it here, beneath a testimonial from former Real Housewife Jill Zarin.) Within a minute or two of passing that sign, you'll pass a few other promotions for Trump: The "Trump Place" buildings along Riverside Boulevard.
The appearance of Trump's name in Manhattan probably won't do much to alter his presidential fortunes. But: Where do advertisements for "Trump the mogul" end and advertisements for "Trump the candidate" begin?
There's some precedent for this question, as Larry Noble of the Campaign Legal Center noted when we spoke by phone on Tuesday. In 2004, Russ Darrow sought the Republican nomination for the Senate in Wisconsin. Darrow was the namesake of the Russ Darrow group, a large car dealership in the state. His son, Russ Darrow III ran the business and planned to keep advertising for it over the course of the election. As it stood, the dealership couldn't mention Darrow's name in the 30 days before the election. The FEC decided that the advertising was allowable, in part because the company was run by the younger Darrow, who also made decisions about advertising. (For what it's worth, Darrow lost.)
"It's clearly going to be a murky area," Noble said, "and I don't think anyone would suggest that you have to take the name down off of all the Trump buildings.* But I think going forward, the decisions being made will be carefully scrutinized about the activities he undertakes under his direction." After all, Trump still runs all of the Trump businesses. He's responsible for the company that's choosing where and when to advertise the Trump name. So if, all of a sudden, Trump, Inc. starts advertising Trump golf outings in New Hampshire, that's going to be tricky.
[Donald Trump just filed to run for president. But we're still waiting to see if he's serious]
Stanford law professor Nate Persily explained the problem. "If none of the advertising of the corporation is coordinated with the candidate," he said, "then we're in Citizens United territory." Meaning that any business that wants to plug Trump can do so under the 2010 Citizens United decision -- whether or not they're Trump-branded companies. But if Trump is running the Trump company, it's different. "The minute this becomes a problem is when the right hand knows what the left hand is doing," Persily said. "If you're the CEO of a company and the candidate, you are in your person a coordination of the corporate efforts and the campaign efforts."
"That's where things get dicey," he continued. "The problem is that you'd be using the corporate treasury funds to effectively contribute to the campaign." The reason there's a barrier between donors and candidates is because candidates are limited in what they can raise (and often, therefore, spend). If candidates could tell donors how to spend money, that distinction becomes useless. In the case where the CEO is also the candidate, Persily said, "it's not really an independent expenditure, it's a coordinated expenditure. Because you're effectively asking the campaign, how would you like me to spend this money?"
That's only in the case of a Trump business -- and its subsidiary casinos and golf courses and hotels -- advertising for Trump. Trump has myriad other deals, of course, including leasing his name to properties. (He apparently doesn't own or manage the buildings near that adopt-a-highway sign, for example.) If the Trump-branded-but-not-run properties pre-exist the candidacy, Persily said, there's not really a problem. But if Trump wants to put his name on the Prairie Meadows casino near Des Moines? He's probably going to want to wait for a few months.
Or if he wants to push any Trump deal that appears to be "outside the ordinary course of his business," Noble said. "If he starts putting up advertisements with his company name on it, if he starts touting his company brand, I think questions are going to seriously be raised."
The seriousness of Donald Trump's candidacy is still something that's worth a few asterisks. If Trump were to step down as the head of his various Trump-branded business interests, it would send a pretty remarkable signal about how earnest he actually is. In the meantime, the never-ending advertising of All Things Trump continues as it always has.
* Some might.